Service Without Service, part 2

Service with a Smirk

Once upon a time, I lived in a Minnesota state forest, my home base from where I traveled extensively. I had started a couple of minor businesses, but when I began working overseas, I needed to divest. An acquaintance asked to buy one. We wrote out an agreement in which she would take over the shop, the company bank account, the assets, and pay me over time. I flew out for a nine month stint in Europe.

Cell phones were a couple of years from reaching the mass market, limiting continent-to-continent communications. When I finally returned, I found the shop’s doors padlocked and empty of contents. The bank account was empty; no payments had been made to me.

Worst of all. I found a multi-thousand lien on my house. What the hell?

I pieced together the events, discovering in my absence I’d been scammed. The acquaintance who ‘bought’ the business had no intention of becoming an entrepreneur. As soon as Northwest’s wheels left the ground, she liquidated the assets, and, in an excess of brutal dishonesty, she sued, claiming she wasn’t a proprietor but an employee and I’d failed to pay her wages. With me out of the picture, she could fabricate a narrative without anyone to dispute it. After a default judgment, she placed a lien on my house in the woods while court gears slowly ground. Fortunately, I disrupted her scheme by returning sooner than expected.

Typical Process Server

Proof of service receipts from the court were revealing. The server claimed the residence was occupied, but no one answered the door. As evidence, he said a television was on, and he found newspapers at my door and letters addressed to me in my mailbox. Wood smoke, he said, rose from the chimney..

Whoa. Let’s take this step by step.

I had no ordinary street address, no television, and no mailbox. Instead, I kept a postal box closer to Minneapolis, unrelated to the township of my physical forest address. I subscribed to no newspaper. The house was heated not by wood, but by a propane tank the size of a Volkswagen.

Not one scintilla of evidence matched my residence. Clearly the server had not visited my house. Did our little scammer mislead him or did the server flat out lie?

My attorney was pessimistic. Even if we could prove malservice and I was blindsided, the court was loath to reopen a closed case. However, with my presence and willingness to pursue the case, the judge reluctantly allowed me to deport $10k into a bank escrow account, until the parties were ready to proceed. Funny thing, with me back on the scene and highly motivated, the other party seemed oddly unenthusiastic about pursuing the suit. It languished for a lengthy period until the bank released the funds back to me.

I got my money back and one painful lesson. But let’s review. 

The plaintiff knew I was out of the country, knew I was unavailable to defend a suit. Whether or not that party misled the process server, the court-approved server did not do his job, that of locating the correct house and determining the whereabouts of the respondent.

We need a word for faking and falsifying serving of documents as required by courts and government bureaus. ‘Disservice’ is out and ‘misservice’ doesn’t quite cover malfeasance. Maybe malservice™? (I might as well invent the word,) During the Great Depression when thousands of North Americans lost their homes, the term ‘sewer service’ surfaced. Process servers might dump hundreds of summons in a ditch whilst claiming they’d hand delivered them.

Service Done Right

Previously in SleuthSayers, I mentioned coming up against a scamming, scheming disbarred lawyer, ‘Dr Bob Black’. He made the mistake of conning a New York City homicide detective. The detective hired an attorney, hired me, and hired a process server. His was not an ordinary server, but one noted for dedication and persistence. When a defendant seemed litigation proof and especially service proof, this was the guy the pros called. No case was too small, no task too mundane, no case too difficult.

Dr Black bragged he was lawsuit immune and judgment proof. All of his assets were stashed overseas. Everything else was in his wife’s name and he maintained no assets in the US. Nevertheless, our detective pursued justice whilst our server pursued the slippery, slimy, slithery Dr. Black.

Black proved elusive. Our process man turned from server to dedicated observer. At a tactical distance from Black’s house, he camped in his car and jotted notes about the days and times of lawn service, mail pickups and drop-offs, trash pickup, and food deliveries.

One of Black’s peculiarities was to schedule appointments to the minute, say, 9:44am or maybe 14:23 in the afternoon. Black claimed he specified these odd times because he was so tightly booked. I viewed it as a conceit, but it also served a purpose: If his afternoon doorbell rang and it wasn’t exactly 2:23, he wouldn’t open the door.

Not to be outwitted, our server took to the trees… literally. He climbed a magnolia off the corner of Black’s McMansion where he could oversee the entryway without being seen. By then he roughly knew delivery routines and he waited. Right on cue, a dry cleaning truck arrived. As Black stepped outside, our man slid down the tree and dashed. Before Black knew what was happening, the server was on the conman, gleefully shouting those infamous words, “You… have… been… served!”

Genial Landlord Lawyer

Misuse of Pronouns

And so the hurricane season of 2004 came to pass, four monster windstorms, one attack after another, that tore apart Florida. Dockets became jammed with customers suing with evictions, with foreclosures, with insurance companies reluctant to pay. Independent lawyers picked up several dozen cases at a time in mass rubberstamp hearings where people lost their homes in less than ninety seconds.

In that mess, an HOA (homeowners association) targeted me. I wasn’t aware of the suit until it was over. My first question asked how I was served. Sure enough, the signature form, called ‘return of service’, referenced a residence, which was then a vacant hurricane damaged house. The notes read to the effect, “Respondent acknowledged she was Leigh Lundin. Server confirmed identity but she declined to leave her signature.”

Wait. What?

The HOA lawyer claimed it was a simple mistake, typos that gender swapped ‘he’ into ‘she’ and ‘his’ into ‘her’ and in the press of so many suits, errors were understandable. In court, I complained and the HOA attorney repeated his assertions. The harried judge snapped at me. “Well, you’re here now.” Damn. I was hoping to see a slap down and I got it… me.

Summons Summary

Courts and clerks opine that misservice and particularly malservice almost never happens, but I would like to see studies to determine actually numbers. The reluctance of one court to reopen a case and the dismissive nature of another is discouraging, a signal that defendants can be overlooked– deliberately.

I have sought remedies in court, mostly small claims. In support of independent workers, I’ve preferred private process servers, you know, like Kinsey Malone. In a case where I sued a large corporation (and won), I paid a county sheriff’s office to do the deed on the theory a uniformed deputy marching through a Tallahassee glass tower might meet less resistance.

In one infamous case of malservice, a judge set aside a $7.7 million judgment. One of my favorite internet lawyers, Steve Lehto, discusses cases in Texas and Michigan. He drew attention to a stinging NBC exposé.

If false service happened to me in court cases at least twice and more than once by Code Enforcement, how common is the practice? Probably not common at all, but when it happens, it happens big– one man ditching hundreds of service documents in Maryland, thousands of documents dumped by a New York law firm. Such cases rarely make the news, but become known throughout the profession and legal circles.

This happened to me. What can I do?

First, don’t panic. Consider consulting an attorney, even in small claims court. Judges should take misservice seriously.

Obtain the receipt of service and look for errors. In my cases, errors were obvious. Being out of the country makes it difficult to receive service. Getting gender wrong is a major problem. Check dates and times. I’ve never had to argue this, but a habit of signing upon acceptance might lend credence to a false service argument.

Following are resources you might find helpful. If you’ve been misserved, good luck.

• The Process Server Institute documents cases:
• https://psinstitute.com/whatisaproperproofofservice/
• https://psinstitute.com/criminal-liability-for-preparing-false-proofs-of-service/
• LegalClarity.org discusses the issue, offering professional advice for sticky situations.
• https://legalclarity.org/what-to-do-if-a-process-server-lied-on-an-affidavit-of-service/
• https://legalclarity.org/what-happens-if-you-cant-serve-someone-court-papers/
• LegalServeUSA  offers consumer oriented advice.
• https://legalserveusa.com/fake-process-server-calls/

See you soon.

A Night Court

Bowery, NYC, 1910

 I recently remembered this piece which I put up at Criminal Brief in 2009 and thought it was worth repeating.  

Frederic DeWitt Wells was a magistrate in New York City. In 1917 he published a book called A Man in COurt, trying to explain the legal system to the layman.  Remember that people in those days didn't get weekly doses of legal dramas on TV.  MOst of the book is didactic and not very interesting today, but the first chapter, describing a session of Night Court still has the power to fascinate.

Before we get to that, a couple more things about Wells.  In 1913 he wrote a letter to the New York Times about a woman  who had stored  all her family’s belongings in a storage warehouse. She wound up in the hospital for the insane. Her daughter Mary Shriver, paid fifty cents a month for the next two years to keep up the fee on the storage. As the Times reported: “All of her worldly possessions were in the trunks, but because of the fact that they were stored in her mother’s name and because of the latter’s mental condition, there was no way in which to obtain their release. She sought relief in the courts, with the result that, through the law’s delays, she lost her employment and her condition has been rendered even more precarious.”  Because of Wells' letter an anonymous person donated the $200 needed to get Schriver's property out of storage.

Two months after the stock market crash in 1929 Justice Frederic DeWitt Wells was hit by a car in Manhattan and died at age 56. 

 

A NIGHT COURT

1

In the Night Court the drama is vital and throbbing. As the saddest object to contemplate is a play where the essentials are wrong, so in this court the fundamentals of the law are the cause of making it an uncomfortable and pathetic spectacle.

The women who are brought before the Night Court are not heroines, but the criminal law does not seem better than they. It makes little attempt to mitigate any of the wretchedness that it judges; in many cases it moves only to inflict an additional burden of suffering. The result is tragedy.

The magistrate sits high, between standards of brass lamps. His black gown, the metal buttons and gleaming shields of the waiting police officers, the busy court officials behind the long desks on either hand tell of the majesty of the law.

In front of the desk but at a lower level is a space of ten or twelve feet running across the court-room in which are patrolmen, plain-clothes men, detectives, women prisoners, probation officers, reporters, witnesses, investigators, and lawyers. Beyond in the court-room a large crowd is on the benches. There are witnesses, brothers and sisters, friends of the prisoners waiting to see whether they go out through the street entrance or back through the strong barred gate seen through the door on the left. Also there are the “sharks” waiting to follow out the released prisoners, to prey upon them as the circumstances may favor; and a number of curiosity seekers watching intently. For them it can be nothing but a morbid dumb show, for they are so far from the bench that not a word of the proceedings could be heard. Only once in a while the shrieks and imprecations of a struggling hysterical woman as she is hurried out of court can enliven the scene.

Fortified with a letter of introduction to the judge and a disposition that will not be too easily shocked at seeing conditions of life as they actually exist, the spectator may find his way past the policeman at the gate in the rail. It clicks behind him ominously and he wonders whether he will have difficulty in getting out. Finally through clerks and officials who become more kindly as they learn he is a friend of the judge, he is seated in a chair drawn up beside the bench. The magistrate is a hearty round-faced man who seems almost human in spite of his gown and the dignity of his surroundings. The court looks different from this point of view and he may easily watch the judicial enforcement of the law supreme.

The organization of these courts is simple. There are not many rules or technicalities. The judges are patient, hard working, understanding, and efficient. The trouble is with the laws they are called upon to administer: Laws which are as absurd, as farcical, and as impracticable as the plot of the lightest musical comedy.

At first the visitor can hardly understand what is going on. A pale-faced man is in the witness chair, on his left a bedraggled little woman is standing before and below the judge, her eyes just level with the top of the desk. Clerks are coming with papers to be signed: “commitments,” “adjournments,” “bail bonds”; others are trying to engage his attention. In the meanwhile the case proceeds.

“I inform you,” says the judge to the woman, “of your legal rights, you may retain counsel if you desire to do so and your case will be adjourned so that you may advise with him and secure witnesses, or you may now proceed to trial. Which will you do?”

She murmurs something. She is pale-faced with sullen eyes, drooping mouth, an over-hanging lip. A sad red feather droops in her hat.

“Proceed,” says the judge; and to the policeman who is called as a witness, “You swear to tell the truth, the whole truth mm-mm-mm–you are a plain-clothes man attached to the 16th Precinct detailed by the central office, what about this woman?”

“At the corner of Fifteenth Street and Irving Place,” says the witness, “between the hours of 10:05 and 10:15 this evening I watched this woman stop and speak to three different men. I know her, she has been here before your Honor.”

“What do you say?” the judge asks the woman. She is silent.

“What do you work at?”

“Housework, your Honor.”

“Always housework; it is surprising how many houseworkers come before me.” She smiles a sickly smile.

“Take her record. Next case,” says the judge. Outside it is a cold sleeting night in early March.

“Witnesses in case of Nellie Farrel,” calls the clerk.

Nellie Farrel stands before the desk beside a policeman; she is tall with fair waving hair. She must have been pretty once; even now there is a delicate line of throat and chin. But her eyes are hard and on her cheeks there are traces of paint that has been hastily rubbed off. She looks thirty; she is probably not more than twenty.

A callow youth, who seems preternaturally keen, swears that on Thirteenth Street between Fifth Avenue and University Place the woman stopped and spoke to him; and he tells his story as though it were learned by rote.

“Do you know the officer who made the arrest?” the judge asks him.

“I do.” A suspicion arises that there may be an interest between the witness and the policeman.

A dark-haired, smooth-faced woman who is standing by the prisoner says: “Your Honor, she’s my sister. I’m a respectable woman, my husband is a driver. I have three children. It’s disgrace enough to have the likes of her in the family. If you’ll give her another chance I’ll take her home with me; my husband is here and he’s willing.” The accused looks down piteously.

“Discharged on probation,” says the judge, and the family go out.

“That’s the third time that’s happened to her,” whispers a clerk. “Every time the sister comes up like a good one.”

A horrible old woman with straggling gray hair, shrivelled neck, and claw-like hands grasps a black shawl about her flat chest. “Mary,” says the judge, “thirty days on the island for you.”

“Oh, your Honor, your Honor, not the workhouse. Oh, God, not the workhouse,” and she is borne out screaming and fighting and invoking Christ to her aid. The judge turns and says in explanation, “an old case, an example of what they all may come to.”

A dark-haired little French woman is brought in with crimson lips, bold black eyes, and expressive hands. A detective testifies that he went with her into a tenement house on Seventeenth Street west of Sixth Avenue. Charge: Violation of the Tenement House Law.

“Qu’importe,” says the woman. “I go in ze street. I am arrested. I stay in ze house. I am arrested. I take ze room. I am arrested. Chantage—Blackmail. C’est pour rire.”

Who are these women who are brought in a crowd together? One of them older than the rest is a foreigner plainly dressed in black silk with a gold chain. She does not seem particularly evil, but rather respectable. The others are in long cloaks or waterproofs hastily donned and through which are glimpses of pink stockings. They have hair of that disagreeable butter color which speaks of peroxide. There has been a raid on a west-side street of a house of ill repute. Some testimony is given and the older woman, the “Madam” is held in bail for the action of the Grand Jury while the rest are held for further evidence. The judge tells us there will probably not be enough testimony and they will be released in the morning. But unless bail is found they will spend the night in cells.

A nervous, excited woman comes in—two policemen are with her. She has been arrested for disorderly conduct on Sixth Avenue near Thirty-first Street. She has been fighting with a man who has also been arrested and taken to the men’s Night Court. Hers is a hard, tough face of the lowest type.

“Why should you try to scratch the man’s face? What did he do?” the judge asks. “Is he your husband?”

“My husband, your Honor? Yes, I guess you can call Al that. We lives up town and when I went out he says to me, ‘Hustle, kid, you got to hustle, the rent’s due and if you don’t get the money I’ll break your neck.’ The slob won’t work. Well, a night like this you couldn’t make a cent and I only had half a dollar and I wanted to get a bite to eat. I hadn’t had a thing since four o’clock, and then I met Al going down Sixt’ Avenue an’ he tries to swipe me fifty cents off me and I was that wild I wanted to tear him. I’m sorry; I guess it was my fault. I don’t want to see him jugged, so please let me off, your Honor, and I won’t make no trouble.”

“Take her record,” said the judge, “and hold her as a witness against the man.”

A string of women are brought in for sentence who have been having finger prints taken in the adjoining room. The judge proceeds to impose sentences according to the previous records which are shown. Some of the women are those who have passed in front before. The little bedraggled woman with the red feather has been arrested seven times in sixteen months. Another has spent eight weeks in the workhouse out of a period of seven months; another has been sent already to the Bedford Reformatory; another has been twice to houses of reform. Before the judge gives his sentence he refers the prisoners to the probation officer, who talks with them in a motherly way.

After talking with the little prisoner she addresses the judge. “She says its no use, your Honor, she does not want to reform—it will not be worth while to put her on probation.”

“Committed to the Mary Magdalene Home,” says the judge, and the name brings a startling surmise as to what He of Galilee would have said.

The foregoing is only a typical session of the court. Night after night, from eight o’clock until one in the morning, the scene is repeated. The moral effect and its reaction upon those who conduct the proceedings—the judges, officers, and the police, cannot but be deplorable; the evil done to those forcibly brought there could not be over-estimated.

Substantially the law is that the women may not loiter in the streets nor solicit in the streets, or in any building open to the public. They may live neither in a tenement house nor in a disreputable house. The law makes it a crime for the women to walk abroad or stay at home. Their existence is not a crime, but only in an indirect way the law makes them outlaws. Anyone wishing to prosecute or persecute finds it easy to do so. The worst enemies of these unhappy women are to be found, curiously enough, among both the best and the most evil people in the community. The unspeakably depraved are the men who, either as procurers, blackmailers, or the miserable men who live on a share of their earnings. The excellent people who oppose any remedial legislation which might relieve the situation, seem equally responsible for the present condition, however well-intentioned they may be.

Service with a Guile

Recently I came across a conversation about process servers filming or photographing handoffs with the words, “You’ve been served.” I don’t know how long or limited the practice is, but I opined visual evidence of service is wise.

Not everyone agreed, responding that taking time to record could make a tense situation worse. Furthermore, one said, a process server’s oath prevented them from lying. In a YouTube cast from last year, favorite YouTube lawyer Steve Letho seemed to say faulty service is virtually nonexistent.

I’m aware of at least two cases– personally aware.

Huissier de Justice

If you’ve been on either side of a legal case– adoption, divorce, eviction, foreclosure, small claims, or other non-criminal matter, you or someone on your behalf likely sent or received papers demanding a respondent’s presence and participation in a hearing. Courts provide a number of options, but hand delivery is popular and relatively foolproof– most of the time. Plaintiff may choose a deputy for the job or hire a private process server.

Professional Florida servers may be certified by county court or appointed by the sheriff’s office. Servers must be local permanent residents, at least 18, drug, disease, disability, and felony free, of good character, pass a background check, and pass a certification exam administered by the court of the sheriff’s department.

Notifications other beyond process service may include publishing or posting. More on that in a moment.

Case 1, Mind Your Pronouns

A party listed me in a suit. When I didn’t respond, an attorney for a fellow defendant called to ask why. I knew nothing about it.

Umm…

“But you were served,” he said.

“No, I wasn’t.”

“But you were.”

I insisted I had not been served, so he opened an inquiry. The process server wrote something like, “Neighbors at 5601 Hobbit Habitat identified her by name and she received service at 1:38pm.”

There were only two problems. There was no 5601 and… as must be abundantly clear… I am not a she or a her. To my surprise, the court did nothing, merely saying, “Well, you’re here now and that’s what counts.”

Unless some discipline took place out of the public eye, I believe the court had a problem processor on its hands.

Case 2, No Good Deed

My consulting client, Westinghouse Europe, took over a Florida subsidiary. I knew I’d be leaving Minnesota where I owned another small business. Rather than layoff and liquidate, an employee asked to buy the company subject to seller financing. I agreed. I worked closely with her to take over the concern, then left for my job.

Upon my return, I found mail stating a judgment against me of some ten thousand dollars. Apparently, the former employee found the shop more difficult to run than she’s thought. In violation of our agreement, she laid off remaining employees, closed the doors, liquidated assets of several thousands of dollars, and then sued me.

For what? I hired a lawyer. He confirmed the suit and judgment. Unsatisfied with profiting from the sale of stock and equipment, the former buyer realized she might profit another way. She claimed in court she was still an employee now owed nine months of wages. She knew I was working overseas and couldn’t defend a suit I knew nothing about.

The process server wrote that he identified the residence by mail and a newspaper at the door with my name on it. He said the house was occupied as evidenced by smoke from the chimney and a television playing inside, but residents refused to come to the door.

My home was in a state forest. I had no rural mail delivery because I maintained a post box in a neighboring town and never subscribed to a newspaper. I didn’t own a television and couldn’t answer the door because I was working an ocean away.

If we assume the server was an honest man and the plaintiff knew where I lived (which was doubtful), then I suspect the plaintiff deliberately misdirected him. I don’t know how long she planned hijacking the business, but she waited until I was well out of the country.

Courts don’t like to undo judgments, but to my attorney’s surprise, they agreed to hear arguments if I made an escrow deposit of twelve thousand dollars, which I did.

The case languished. For a couple of years, hardly a peep arose from the other side. When another former employee confronted our plaintiff, she claimed her boyfriend made her do it.

That made little sense. I collected the escrow and moved on.

Posting

Evictions and perhaps foreclosures may require a copy of the complaint be affixed to the door of the dwelling. Photographing the attachment is wise although I don’t recall a tenant ever denied service. However, one story made the rounds of a particularly lazy server required to issue summons to residences in a gated community. When denied entry to homes beyond the fence, he simply dumped the papers in a culvert by the entry. Later he attempted to justify it by saying that was the closest to the front door as he could get. The court was not pleased.

But other process servers could be far more dedicated. I discussed ‘Dr. Bob Black’ (not his real name), a disbarred lawyer and defrocked judge who plagued the Orlando area with pesky cons and scams. Dr. Bob (the ‘Dr’ is as phony as the rest of him) bragged about being judgment-proof with his funds out of reach of the courts.

Nonetheless, I was brought in as a witness by a New York homicide detective who sued the fraudster. Unfortunately, the processor found it nigh impossible to catch the subject out of his house. Serving him became a matter of pride.

Picturing the scene without knowledge of the landscape is difficult, but the summoner reported he hid in a tree. When Black didn’t emerge, our man edged up to the house, turned off the water, returned to his tree, and called the water company to report an outage.

Twenty five minutes later, a service truck pulled up to the house. Our dedicated server slipped down from his tree. When Black appeared in his doorway, the process server shot forward, jammed a thick envelope into his hands and galloped off, shouting, “You’ve been served!”

Publishing

In bygone eras, villagers could find notices ‘published’ in their town square with perhaps a crier to draw the attention of those who couldn’t read. These days, some situations require parties to publish notices in a local paper.

Florida has more code enforcement agencies than any other state. If by chance a resident wasn’t afflicted with a home owners association, code enforcement could step in to keep life miserable. ‘The décor police’ is an apt description. Their lobby, er, professional group FACE (Florida Association of Code Enforcement) lobbied for their ‘officers’ (inspectors) to carry badges and guns (likely in dire situations of color clashing paint protestors or an outbreak of pink plastic yard flamingos). Serious looking police-type badges are now de rigueur, but thus far, code enforcement inspectors remain unarmed (Joel Greenberg’s tax collector’s office nonwithstanding).

Not so long ago, Orange County’s Code Enforcement had a deeply corrupt pocket of ‘officers’ who used their agency to wage personal battle. They violated their own rules and regulations and statutes. Expectations like due process, equal treatment under the law, and trespassing meant little to them.

And they used a dirty trick. When required to publish notices they didn’t want the public to see, they indeed published in a local paper… The Heritage Florida Jewish News. When confronted about this obscure paper, Code Enforcement giggled. They tittered. They sniggered. They chortled. As one Jewish lawyer said, even Jews didn’t read the newspaper. Legal notices still make up a substantial section of its pages.

These days Code Enforcement has become more professional and I was pleasantly surprised to see inspectors following the law. I’ll never become a fan; if a pink plastic yard flamingo makes my neighbor happy, then I’m happy, but plenty of teapot potentates think otherwise. At least I can no longer complain about abusive and corrupt practices.

Accepting

You may find yourself served. If so, I suggest accepting politely and gracefully, i.e, don’t shoot the messenger.

If you have to serve someone, you usually have a choice between using a deputy or hiring a professional process server. You may choose to send a non-verbal message with one or the other, or if you have safety concerns, you may use a deputy.

Be safe. Be respectful, and don’t let anyone fib about service. It’s all part of the process.

Barnyard Justice

    Beastly behavior might end up in court.

    Beginning in the Middle Ages and extending through the 18^th century, many European nations believed that animals could commit crimes. I’m not talking about soiling the rug or barking after midnight. Pigs, dogs, rats, and other creatures might be accused of penal law violations. There were several sources for the belief in animal culpability. Chiefly, the Hebrew Bible supported the idea. In Exodus 21:28, it is written that "[w]hen an ox gores a man or a woman to death the ox shall be stoned, and its flesh not eaten." Additionally, medieval cosmology established a great chain of being. Society was hierarchical. Atop the ladder sat God, followed on the lower rungs by heavenly hosts. Below them, God’s representatives in church and state—the priests and king rested. Nobles, freemen, and serfs usually complete our view of the ladder. The hierarchy, however, did not stop there. Primates, quadrupeds, lower animals, and vermin were followed by plants in the great chain of being. Unique among the earthly species, humans were made in the image of God. They alone had the opportunity to join the divinity in the next world. Because each occupant of a rung had the same essence, to a greater or lesser degree, moral agency extended down the ladder.

            Both secular and religious authorities agreed on the need to prosecute certain animals in courtrooms and, as appropriate, to punish them for offenses. The reasoning behind these prosecutions varied. Some saw animals as sentient beings who had conscious thoughts. They could scheme and behave like humans. (Although from a different time, we might remember Aesop. He famously crafted a bundle of tales about anthropomorphic beasts of farm and forest.) Other thinkers supported animal trials out of retribution and a need to extract society's measured response to wrongdoing. The absence of legal intent did not necessarily free the animal from criminal liability or consequence. Still others saw a threat to social order by not acting. A goring ox was not executed because it was morally guilty. These thinkers recognized that oxen do what oxen do. As a lower animal, however, it had killed a higher animal. The ox threatened to upset the divinely ordered hierarchy of God’s creation. Finally, some, like Thomas Aquinas, reasoned that the lower animals are God’s creatures. He uses them for his purposes. To punish or curse them for their actions would be blasphemy. Offending animals, he argued, therefore, must be agents of Satan. It was widely understood that the Devil frequently used irrational and simple creatures to the detriment of humans. The disposition of the cases then must not be seen as punishing the animals but as hurling them at Satan. Think of the demon-inhabited pigs in the Book of Matthew, Chapter 8. They ran off a cliff into the sea and drowned. The agent of evil needed to be destroyed not for the criminal act but rather to resist the Great Tempter.

            Whether criminally culpable or demon-possessed, animals deemed guilty/cursed were destroyed. The meat could not be salvaged. Neither the beast nor the owner fared well under the system. Far better, I suppose, when a non-domesticated animal stood accused. Nobody loses when a mosquito gets its due.

            Courts, both secular and ecclesiastical, developed procedures for the trials of animals. A distinction was drawn between the capital trials by secular courts of offending domestic animals (Thierstrafen) and judicial proceedings undertaken in ecclesiastical courts against vermin for damage (Thierprocesse). Although the cases had non-traditional defendants, the courts took the proceedings very seriously.

            As often happens, while looking for something else, I stumbled into a 1906 book, The Criminal Prosecution and Capital Punishment of Animals by E.P. Evans. He documents the medieval belief in the appropriateness of the criminal prosecution of animals. Evans, in particular, notes the work of Bartholomé Chassenée, a 16^th-century French jurist. Chassenée wrote a treatise describing his efforts to defend accused beasts. Evans' collection of animal trials is a fascinating world to visit. 

        The November/December issue of Alfred Hitchcock Mystery Magazine includes my story, “A Rat Tale,” the second story about the animal avocat, Bernard de Vallenchin. The tale is based loosely on a Chassenée trial. Both Valenchin and Chassenée work on behalf of the lowly rat. It was tempting to get lost in the weeds when telling the story. Who, after all, doesn't want the protagonist to drop a casual aside about the excommunication of moles in the Valley of Aosta, Italy, in the year 824. I tried to strike a balance. The goal was to offer a compelling courtroom drama. I also wanted to provide a few odd, historical details.  I hope that a reader finishes the tale entertained and interested in this jurisprudential footnote.

---

            If you don't like the story, punish my dog.

            (I'll be traveling on the day this posts. If you comment, I apologize for not getting back to you promptly.) 

            Until next time. 

 

Small Claims 0

Previously I described the steps I used to take a conglomerate to court. Long before, I was sued by a dishonest man and lost a small claims case that, had I been more knowledgeable, I might have won.

My friend Geri lived a mile from me and I watched over her house when she vacationed. Often she’d schedule work while she was away, and this time she wanted to replace her fence.

Thanks to hurricanes and moisture, fences have short life spans in the Sunshine State. Fences were a concern for me too, so I researched ways to give fences extra years, a realm of excitement beyond words. The following are the fruits of my labor, otherwise called ‘best practices’:

1. Embed posts in concrete.
2. Shape the concrete into a dome to run off water away from the post rather than collect moisture around it.
3. Don’t install panels at ground level, but elevate them an inch or so above.
4. Don't use staples or ordinary nails. Use ring-shank nails to resist winds.

I typed a list of the above and sketched a diagram of setting posts in concrete. These I stapled to the sales proposal given Geri and agreed to the extra charges and signed off. The installer missed their start date, so on her way out of town, Geri asked a neighbor to phone me at work whenever construction commenced.

The First Hint

The neighbor gave me a heads-up at eight the next morning. By the time I arrived, workmen had already set several posts… without concrete. After I explained they were supposed to use cement, a worker with a garden trowel spread dry sandmix around posts.

No, I said, they’re supposed to be set in concrete shaped to aid water runoff. I returned to work leaving them to it.

I flew to Miami and returned the following afternoon. The job had been wrapped minutes before my arrival. Except…

The pickets (paling panels) rested directly on the ground. Grounded palings made wood rot more quickly, wicking moisture from the soil up through the grain.

The crew had removed and reset only the first post in concrete; they hadn’t bothered with the others. Many showed a sprinkling of dry concrete but nearly as many went without.

Now suspicious, I looked closer. On the plus side, they hadn’t used staples but, after pulling one nail, I discovered they’d used ordinary smooth box nails. They company had completed none of the requirements they’d agreed to.

I’d let Geri down. I was so ticked off, I missed the most obvious mistake of all.

“Uh,” said the neighbor. “Why did they install half the fence backwards?”

“What?”

“Half of the fence is inside out.”

The workmen had installed the left side of the fence facing out and the right side facing inward. Stick with me if you can handle the excitement.

Small Claims 3

Home Automation Interface

Last month, I told you about purchasing expensive name brand home automation that madly malfunctioned. The dealer/installer and the manufacturer’s tech support added insults to injury… literal insults, telling me the device failure was my fault. I was stupid. I was annoying. I misrepresented or misinterpreted the sales literature. I was trying to cheat them into getting something for nothing. Surely their mothers wouldn’t have taught them to behave like that.

So what would an American do? I took both parties to small claims court.

Perhaps it’s a character defect, but I’d have loved to witness the deputy striding into the corporation’s Tallahassee headquarters to serve the complaint. No, that’s not quite true. I really wanted to see the consternation of the so-called customer support guy when faced with a subpoena to produce their tech line audio tracks “recorded for training purposes.” Finally! A useful purpose for those things.

First Contact

A few weeks after filing, I received a telephone call from California, a vice president within the conglomerate’s North American legal department. My little case garnered more attention that I’d anticipated. He courteously enquired if I’d hired counsel and then discussed the case.

I was mindful to guard my tongue. Attorneys and competent interrogators know people feel a need to elaborate. Therein lie traps for the unwary. I simply laid out the facts without revealing how much proof and documentation I’d gathered. When he’d question one aspect or another, I simply said I was prepared to demonstrate this or that.

He asked if I’d vented on-line. I had not.
He asked if I would allow their technician to inspect the unit in situ. I was.
He asked if I was willing to settle. I was.
He asked if I was willing to settle for only a replacement. I wasn’t.
He asked if I was willing to continue the conversation. I was.

While cordially but carefully phrasing regrets, he explained I was unlikely to prevail on several accounts, such as loss of income and violations of sharing personal information. Likewise he predicted a judge wouldn’t award me expenses, but might award them attorneys’ fees. He was surprised to learn his conglomerate’s web sites offered no way to opt out of the distribution of shared personal information.

HAL Gone Bad

A technician sent by the vice president arrived. He confirmed everything I said and more. The device wasn’t merely a brain-dead dud, it was a hulking, marauding, unpredictable Frankenstein of a dud.

He verified the firmware serial number 00001. My court filing argued if this were accurate, it meant the assembly line hadn’t yet learned to build this new machine. And if it wasn’t true, then it opened scarier possibilities. A user in California or Calcutta might use their app and suddenly find themselves inside my house.

Mediation

Florida’s Small Claims Courts require pre-trial mediation. This mandatory session takes place prior to a trial in the hope the parties can reach a resolution and avoid tying up the court’s time. I was prepared to back down twenty percent or so, but little more.

Many court-appointed mediators are retired attorneys. They know what they’re doing. The one assigned to my case was pleasant and professional. When the opposing attorney stepped out of the room, he complimented the case’s preparation and suggested, should mediation fail, I might want to move for a jury trial rather than rely on the stricter view of a judge. Good point.

The conglomerate sent down an attorney from Tallahassee. He turned out cordial and likeable. However, he informed the mediator their California Vice President of Legal suggested the gadget wasn’t as bad as claimed, and they’d settle for no more than a replacement product. The lawyer gave an impression he’d urged California to compromise, but they were hanging tough.

This lawyer spent seven hours driving and three hours in the courthouse just to say no. He did what he was told to do, but he didn’t appear pleased as he packed to leave. We shook hands. He said he’d stay in touch and departed on his 3½-hour journey back to Tallahassee.

The Other Party

The independent dealer/installer didn’t appear at all, forfeiting his part of the case. Before leaving the courthouse, I petitioned for a summary judgment.

My intent wasn’t to crush the little guy, crappy as he was. What he had in mind by not appearing, I don’t know, but he panicked. He begged me to settle for a lesser amount, saying he could afford little, and then named a figure more than I would have asked.

I didn’t need an invitation and he had acted a right ass. “Sure,” I said. “Have it to me before the hearing, then I’ll ask the court to dismiss.”

As Seen On TV

Besides court filings, I received a letter with a charming picture of People’s Court Judge Marilyn Milian. Oops, not quite– it was from Lori Mooney, a producer for The People’s Court. They wanted my case on television.

Bad enough I burden SleuthSayers with my laundry, but I’m too private to air it on national television.The dealer’s opinion was immaterial, but I felt certain the conglomerate would not risk publicly broadcasting the problems in their fancy flagship device. They might win the case but lose their appeal, so to speak.

Two more People’s Court letters arrived. They guaranteed I’d receive the money sought if I won the case. They’d pay for my time, which as a writer is about 2½¢ per minute or word or some such. They’d pay my travel expenses. I pictured a coronavirus motel off a Connecticut interstate. I ignored the offer, but I didn’t blame them for trying. It’s not every day a little guy takes on a $2.3-billion conglomerate.

The opposing lawyer wondered how our case came to their attention. I didn’t know, but I hazard producers might offer court clerks rewards or bounties to bring interesting cases to their attention.

Countdown

The court date approached. The Tallahassee attorney said he regretted to tell me California decided to play hardball. Would I accept one last offer of a replacement before they prepared for court? Umm, no but thank you, I said.

Meanwhile, I reminded the absentee dealer I hadn’t received a check or money order. He said negotiations to sell his company had kept him busy. The toad had set the terms of the agreement and he wasn’t meeting the conditions he set for himself.

Subpoenas

Subpoenas are writs or instructions to bring to court a person or thing. A subpoena ad testificandum commands the appearance of a person. A subpoena duces tecum commands the appearance of a thing.

I checked on the subpoena duces tecum for the tech support’s recordings. I gathered company sales brochures, went over my notes, and spent hours creating visuals to explain the technology and why their product failed. Wifi inside the courthouse was next to nil. Accordingly, I loaded their advertising videos on my computer so they could be played without internet.

The date neared. Their lawyer phoned. Would I accept a replacement plus a little (very little) extra to ship the old unit back to them for study? I declined. I contacted the dealer, who said he was travelling out of state and could I wait? He couldn’t get on-line. Use priority mail, I suggested.

The date grew closer. The lawyer enquired if I’d accept a replacement, deinstallation, reinstallation, removal of the old unit to their lab, and a bit more money? I told them they were getting closer.

The date loomed three days hence, then two days. Would I, asked the attorney, accept pretty much all I’d sought if we could finalize an agreement in the next few hours? I went, “Mmm,” drummed my fingers and said, “Of course. That’s all I wanted.”

Thus began a flurry of emails and overnight posts. I had no way of knowing whether the two corporate lawyers were a case of good cop / bad cop, but I believed the Tallahassee counsel encouraged the California Legal Department to stop with the hardball and settle.

I called the twisty dealer and informed him I was out of patience and he was out of time. He was in the hospital, he said, palpitations of the pump due to the stress of this case. Just deliver a check, I said, then you’re done.

In the final hours before the hearing, the conglomerate’s attorney prepared motions to dismiss their part of the case. In our non-disclosure agreement, I consented not to bad-mouth their company. Not a problem– I didn’t hate them, but I refused to accept failure of responsibility for a failed product. One tech support guy could have solved the problem a year earlier.

In the middle of the final exchanges, the phone rang– the dealer. He suddenly remembered he had a wife and she could deliver a bank draft to me in the remaining ninety minutes.

Closing the Case

The dealer’s wife squeaked in with the check. That released him from further obligation.

Several days later, a different installer phoned. Under corporate instruction, he was ready to swap out the defective unit for a… he sounded puzzled… lesser model?

Their company’s flagship ‘smart’ gadget couldn’t be trusted, but their top-of-the-line ‘dumb’ models had a good reputation, I worked out a deal to trade down and then provide my own intelligent controller. The installer swapped gadgets, I attached a new electronic brain, and that’s worked well since.

I emailed the California vice president and the Tallahassee lawyer, thanking them for resolving the problem. I love almost being a Southerner. The email to the Florida lawyer might have been a bit more genuine.

And Now…

Smart appliances, intelligent gadgets, and home automation are running smoothly. The homestead feels secure except… Well, a few weeks ago a burglar attempted a break-in. He made it into the garage. The system notified me and I notified the police. They got him. The state prosecutor loved the videos of the baddie picked up by multiple cameras.

I’ll reveal more about this after the burglar hearing. You won’t believe his last name.

Small Claims 2

Home Automation Interface

The goal of going to court is to be ‘made whole’. If you were injured, either physically or financially, you seek redress. Don’t try to profit, don’t attempt to win the lottery.

If you proceed to Small Claims court, you might find a few useful hints in the following. Otherwise, feel free to skip my scintillating prose and entertain yourself with 9gag.com or that old favorite, Wimp.com, whereupon farewell and I’ll see you in two weeks.

9Gag	Wimp

Meanwhile, on to the article!

Small Claims 1

“Open the pod door, Hal.”

“I’m sorry, Leigh. I can’t do that.”

“Hal, open the door.”

“Nope, sorry, no can do.”

“Hal, open the ¡@#$%£¢†€‡ door!”

“D’accord, Dave. It’s open.”

“Name’s Leigh, and no, it isn’t.”

“Is.”

“Isn’t.”

“Is.”

“Hal!”

“You can’t make me. Nyaa-nya-na-na-nah-nahhh.”

Geek Chic

This was not a conversation from 2001, but one in my own house in 2019. The name Hal has been changed to protect the guilty.

I’ve been upgrading my house with security features and smart home automation. Devices hooked up thus far include several lights and lamps, entry locks and garage doors, ceiling fans, air conditioner, water heater, thermostats, entertainment center, security cameras, a robot, a NAS storage device, and a number of talk-to-the-pod gadgets and displays.

My friend Thrush and I installed most of these as inexpensive, tinker toy, erector set, do-it-yourself doodads. I’ve avoided big, brand name products, which are less fun and très cher. They’re also proprietary– they might reject third party add-ons or charge you subscription fees to maintain connectivity to your products after the first year.

But, for a critical component, I deviated from the DIY rule. It was not cheap. I bought the latest name brand thingamajig from a well-regarded manufacturer, the latter part of a $2.2-billion conglomerate with $2.5-billion in home automation and security sales. Also, *gasp* I paid for dealer installation instead of assembling it myself. I had to wait two months for the initial product to roll off the assembly line. I’m also well aware of ‘bleeding edge’ technology, but with an engineer and a couple of software gurus on the premises, how risky could it be?

As it turns out… there’s a reason I’ve not mentioned the product and brand name– I signed a settlement agreement not to. After a multitude of ‘Hal’ interactions not unlike the above, I sought remedies.

What Could Go Wrong? Wrong? Wrong?

The device would not obey Apple, Android, or Google demands. It often reported contrary information, e.g, it claimed the device was on when it wasn’t, and vice versa. Worse, I couldn’t tell it to turn on the doohickey because it thought it already on, and I couldn’t tell it to turn off the box because it was already off. The only solution was to reboot.

Mashing the on/off buttons often proved fruitless. I pictured some poor schlep in California helplessly watching his kitchen devices cycling on an off, his lights flashing, and his garage door bouncing up and down thanks to a signal routed from Florida.

Meanwhile, lights would go on and doors would unlock and open at three in the morning. Picture Captain Kirk slamming face first into Enterprise doors that abruptly open and close. Fortunately the blast from the rudely awakened entertainment center frightened away any curious burglars.

Internet capability either wasn’t installed or it refused to work. Even if internet had been fully functional, it was poorly designed. If the internet was down (as mine constantly is!), their version of software couldn’t operate the device. You’d have to get out in the rain to open doors and turn on lights, even if you had electricity.

I’d purchased battery backup that of course spectacularly failed. I’m hard pressed to think of anything that did work. Believe me, the situation was so much worse than I’m allowed to describe.

The Consumer’s Fault School of Customer Support

So call tech support, right? Exercise my warranty and call the installer too?

The first techie admitted they didn’t yet have manuals and guidelines, but agreed the unit wasn’t behaving as promised in promotions, including expensive video ads. He'd request a replacement.

Then the second guy I’ll call Dan, but his real name is Butthead. He aggressively began by insisting nothing could be wrong with the device. He said I expected behavior it wasn’t intended to do. Dan dismissed the lack of functionality as a misreading of their advertising. This ‘gentleman’ (Sarcasm cleanup on aisle 4) told me I was annoying, nasty, and abusive. (I never was, but we’ll return to that.) Joining in with the installer, Dan accused me of cheating his company and trying to get something for nothing. From there on out, he fielded subsequent incoming calls and refused to forward me to either the original tech guy or their boss.

Wow. Not only did I pay out $2500, but failure of the device was sucking $100 a month out of my (personal) micro-economy. Details might violate the settlement confidentiality agreement, but the point is that the device was slowly bleeding me.

Believe me, I’ve understated the problems. So what’s an American boy to do? I sued. I took the $2.2-billion conglomerate to small claims court.

Wait! What is she ➡︎ doing here?

In a subsequent article, I’ll explain my experience and offer tips to anyone considering this route. See you in two weeks!

Fine! If He Can't Be Treasury Secretary....

"The pure ermine of the Supreme Court is sullied by the appointment of that political hack."

— The New York American, March 17th, 1836

Two cycles ago in the Sleuthsayers rotation, I wrote at some length about the current national discourse around those pesky Confederate monuments. Two weeks back, I wrote about armed incursions, unauthorized and unsanctioned by the United States government, into Mexico and other then-emerging nations in the Caribbean Basin.

The bust in question.

Today's post kicks off with a quick reference back to Monumentgate: namely, the debate on whether or not to remove the bust of former U.S. Supreme Court Chief Justice Roger B. Taney from its current perch in the U.S. Capitol building. And then I'm going to try to tie all three posts together with the theme which clearly connects them.

First: Taney (pronounced "Tawny"), who served as Chief Justice of the U.S. Supreme Court from 1836 until his death at age eighty-seven in 1864. The current debate is whether to remove the bust of him which resides on the old Supreme Court chamber in the U.S. Capitol, and replace it with a bust of the first African-American justice, Thurgood Marshall.

Like a number of the men memorialized in those statues currently causing such a commotion both here and abroad, Taney was a Southerner (born and raised in Maryland). Also like so many of them, he was a member of the planter aristocracy (Taney's family holdings produced mostly tobacco). There can also be little question that Taney believed, as did so many of these other men, that slavery was the bedrock on which "Southern culture" rested, and therefore must be protected.

However, unlike most of these other monumental (see what I did there?) subjects, Taney freed his slaves. Also unlike so many of his fellow Southerners occupying positions of authority in the United States government, Taney did not resign his position when secession came (as one of his fellow Supreme Court justices did). And like fellow slave-holders such as Thomas Jefferson, he seems to have had mixed feelings about slavery, however important he may have felt it was to the Southern way of life. 

Now bear in mind that Taney's home state of Maryland never actually seceded from the Union. What's more, Taney was in his eighties by the time hostilities broke out in December of 1860. It's not like he was going to join the army. What's more, his public writings and statements during the Civil War make clear Taney's opinion that the Southern states possessed the inherent right to secede from the Union, and what's more, he also clearly blamed Abraham Lincoln for said secession in the first place.

Chief Justice Roger B. Taney

It makes you wonder how, if given the chance, Chief Justice Taney might have ruled on the myriad court challenges to Lincoln's Emancipation Proclamation and the constitutional amendments which eventually enfranchised all native-born Americans and granted them both citizenship and the right to vote.

It shouldn't.

Because the existing record of Taney's legal work both as a trial lawyer and as a federal judge paints a pretty clear picture of how Taney felt about the legal status of both slavery and of enslaved peoples of African descent. Let's look at this record.

Taney famously stated in open court in 1819 that slavery was "a blot on our national character." Of course, he was defending an abolitionist against a charge of incitement to riot at the time. So does that statement really count? 

After all, Taney, wasn't just a lawyer. He was also a politician. And, as the quote which kicks off this blog post notes, something of a political hack, at that.

Initially a Federalist, Taney changed his party affiliation in 1828, in the middle of a four-year term as State Attorney General for Maryland. This was in coordination with his support for the presidential candidacy of Democrat Andrew Jackson of Tennessee. When Taney left office as Maryland's attorney general in 1831 he quickly found himself filling a succession of positions in Jackson's cabinet.

Jackson lost most of his cabinet over the "Petticoat Affair."

First he spent six weeks serving as acting Secretary of War, replacing John Eaton, who resigned as part of the infamous "Petticoat Affair." Then Jackson gave Taney plenty to do as Attorney General of the United States. 

Jackson had come to power at the head of a coalition of Southern and Western state interests intent on curbing federal overreach and asserting states' rights. Taney supported the view that local governments (in the form of the states) were the bedrock of good government, and that these institutions were more inherently aligned with the direct will of "the people."

Of course, "the people" did not mean all people. In a May, 1832 court appearance in his capacity as U.S. Attorney General Taney argued in support of a South Carolina law stating that free black sailors who came ashore while their ships were in South Carolina ports could be imprisoned. Taney reasoned that:

The African race in the United States even when free, are every where a degraded class, and exercise no political influence. The privileges they are allowed to enjoy, are accorded to them as a matter of kindness and benevolence rather than of right...And where they are nominally admitted by law to the privileges of citizenship, they have no effectual power to defend them, and are permitted to be citizens by the sufferance of the white population and hold whatever rights they enjoy at their mercy. They were never regarded as a constituent portion of the sovereignty of any state... They were not looked upon as citizens by the contracting parties who formed the Constitution.

How do you think the guy who wrote that would have viewed the Thirteenth, Fourteenth and Fifteenth amendments? Remember these words. More on them below.

After a couple of years of representing the Jackson administration's interests in court, Taney found himself in line for an even more powerful position when Jackson fired his Treasury Secretary over a difference of approach in getting rid of the Bank of the United States. Jackson believed the Bank was illegal and wanted to destroy it. Taney supported the notion of independent "State" banks, and was more in line with Jackson on this than his predecessor. So Jackson named Taney as his new Treasury Secretary.

The only problem was that the Anti-Jacksonian ("Whig") party controlled the Senate, and Taney would need to be confirmed by the Senate in this new position as Treasury Secretary. Partly because of his (and Jackson's) stance on the Bank of the United States, and partly because of their loathing for Jackson personally, the Whigs managed to block Taney's confirmation. He bears the dubious distinction of being the first executive branch nominee on the history of the United States to fail to gain Senate confirmation.

Was Jackson EVER really this placid?

Furious, Jackson attempted to appoint Taney to an open position on the U.S. Supreme Court. Again, the Whig-controlled Senate blocked his appointment. But Jackson, not known for being either forgiving or a quitter, wasn't done.

It should be noted that during his eight years in office Andrew Jackson succeeded in completely remaking the Supreme Court, with an unprecedented five appointments. How this came to pass I intend to address in my next blog post. For now, suffice to say that the next time a position on the Court came open, it was that of the Chief Justice, on the occasion of the death of the long-serving John Marshall.

Third time was a charm, mostly, because there had been an election in the interim and Jackson's Democrats now controlled the Senate, so he got Taney on the bench in March of 1836. The quotation that leads off this entry was published in response to Taney's appointment.

Taney quickly developed a reputation for careful, nuanced reasoning during his tenure on the Court. He might have come up as a political hack, but he was also clearly very concerned with being taken seriously as a legal theorist. His rulings in landmark cases throughout his first two decades on the Court won him respect on this front. 

They also constitute a clear-cut record of Taney's thinking on the issue of slavery and the role of both it and of African slaves in American society. Time and again Taney and the Jackson-appointed Southern majority on the Supreme Court ruled to support what Southerners termed their "peculiar institution."

This all came to a head with the historical event for which Taney is probably best known: his authorship of the Supreme Court's notorious majority opinion in the federal case of Dred Scott v. Sanford (1857). In this sweeping ruling, dealing with the question of whether a slave taken by his owner into a state or territory where slavery was outlawed was to be considered free, Taney went far beyond the narrow scope of the question before the court, and attempted to settle the broader questions of the legality of slavery and the role of African-descended peoples, be they slave or free, in American society.

As he had argued twenty-five years earlier in the South Carolina port case quoted above, Taney maintained that because their status had not been expressly spelled out by the framers of the Constitution, African Americans had no legal status in the American legal system, and thus, were inherently barred from becoming citizens (never mind that when the Constitution was drawn up in 1788 five of the original thirteen states already afforded free blacks the right to vote). As a result blacks–free or slave–were legally disqualified from bringing suits in federal courts. Under the Constitution, Taney ruled, blacks possessed "no rights which the white man was bound to respect."

You probably know what happened next. Rather than settling the slavery question "once and for all," Taney's decision brought down a firestorm of criticism on his and the Court majority's heads. If anything the Dred Scott  decision helped bring about the violent sectional conflict so many–including Taney's political benefactor Andrew Jackson–had worked so hard to forestall. 

In the words of historian Daniel Walker Howe: "Taney's blend of state sovereignty, white racism, sympathy with commerce, and concern for social order were typical of Jacksonian jurisprudence...

Ironically his devotion to state sovereignty and white supremacy in the long run contributed to the dissolution of the Union Andrew Jackson loved."

So should that bust of Taney in the U.S. Capitol come down? Should it be replaced with one of fellow Marylander, the Baltimore-born, brilliant lead attorney in the ground-breaking Brown v. the Board of Education civil rights case, and eventual first African-American Supreme Court Justice Thurgood Marshall?

Of course.

But don't just take my word for it. Ask the Maryland State Assembly and the Baltimore City Council. Both entities removed bronze statues of Taney from their grounds back in 2017.

Tune in next time when I take on the question of how Andrew Jackson managed to get five of his own hand-picked justices placed on the Supreme Court in a mere eight years.

See you in Two Weeks!